Opinion
No. CV03 034 88 22 S
November 24, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT #101
This case comes before the court on a plaintiff's motion for summary judgment in lieu of a complaint under General Statutes § 52-607. The facts of this case are undisputed. The action is based on the defendants Davis Tree Logging, LLC' (Davis Tree) and Peter T. Davis' failure to pay employee fringe benefit contributions pursuant to a collective bargaining agreement between Davis Tree and Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (union). The plaintiff, Fred Smit, is the chairman of the board of trustees for the union's pension and annuity funds. After Davis Tree failed to make payments from April 16 through November 9, 2001, Davis Tree and Davis, individually, reached a settlement agreement with the union on January 22, 2002.
Pursuant to the settlement agreement, Davis executed a corporate affidavit of confession of judgment in his capacity as president of Davis Tree as well as an individual affidavit of confession of judgment. Both confessions of judgment have identical terms. Pursuant to ¶ 1(c) of the settlement agreement, Davis Tree agreed to continue making payments for current contributions, including late charges, as they become due and owing to the union. Furthermore, Davis Tree is required to cure any default within seven calendar days from the date of written notice. Failure to cure the default gives the union the right to file the corporate and individual affidavits of confession of judgment and execute them according to their terms. According to the settlement agreement, the Clerk of the Supreme Court, Orange County, State of New York, is authorized to enter judgment without further notice to Davis Tree or Davis.
By letters dated April to June 2002, pursuant to the default provisions of the settlement agreement, the union gave written notice to Davis Tree and Davis of their defaults and the time within which to cure them. On or about March 5, 2002, the New York court entered judgment against Davis Tree and Davis for delinquent contributions and late charges for the period from April 16, 2001, to February 18, 2002. The total judgment amount was $8,795.34. A second judgment was entered on or about July 1, 2002, in the amount of $17,566.79, and covered the time period from February 18, 2002 to June 21, 2002. A third judgment was entered on or about August 27, 2002, in the amount of $9,341.07, and covered the time period from June 24, 2002 to August 16, 2002.
The defendants have failed to satisfy the judgments, and the union has now filed this summary judgment in lieu of a complaint pursuant to General Statutes § 52-607. The motion is supported by the affidavit of Smit; a copy of the collective bargaining agreement between Davis Tree and the union; a copy of the January 22, 2002 settlement agreement between Davis Tree, Davis and the union; a copy of the corporate affidavit of confession of judgment by Davis Tree; a copy of the individual affidavit of confession of judgment by Davis; and certified copies of the Supreme Court of the state of New York for the County of Orange judgments dated March 5, 2002, July 25, 2002 and August 27, 2002.
The defendants oppose the motion for summary judgment claiming that although General Statutes § 52-607 does allow a judgment creditor to proceed on a motion for summary judgment in lieu of a complaint instead of proceeding under the Uniform Enforcement of Foreign Judgments Act (UEFJA), General Statutes §§ 52-604 through 52-609, it does not allow the judgment creditor to do so where the foreign judgment cannot be registered and enforced under the UEFJA itself by virtue of the fact it was obtained by default or confession of judgment. They have not submitted contradictory affidavits or evidence.
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46] . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559-60, 783 A.2d 993 (2001).
"The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted in opposition to the motion] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Citations omitted; internal quotation marks omitted.) Barile v. Lenscrafters, Inc., 74 Conn. App. 283, 285, 811 A.2d 743 (2002). When a party files a motion for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
Pursuant to General Statutes § 52-604, the UEFJA provides: a "Foreign judgment . . . [is] any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment." (Internal quotation marks omitted.) Moasser v. Becker, 78 Conn. App. 305, 311, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003). General Statutes § 52-605(a) provides: "A judgment creditor shall file, with a certified copy of a foreign judgment, in the court in which enforcement of such judgment is sought, a certification that the judgment was not obtained by default in appearance or by confession of judgment, that it is unsatisfied in whole or in part, the amount remaining unpaid and that the enforcement of such judgment has not been stayed and setting forth the name and last-known address of the judgment debtor." In this case, the plaintiff cannot rely on § 52-604 because it is undisputed that the judgments are premised on confessions of judgment.
Instead, the plaintiff relies on General Statutes § 52-607, which provides: "The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired." "Our courts have concluded, despite the language of § 52-605(a) providing that a foreign judgment creditor shall file a foreign judgment in the court in which enforcement is sought, that the provisions of the UEFJA are not exclusive, and a judgment creditor still may seek recognition of a foreign judgment by way of a common-law action on the judgment [pursuant to § 52-607]." (Internal quotation marks omitted.) Moasser v. Becker, supra, 78 Conn. App. 312. "[General Statutes] § 52-607 preserved the common-law right of a judgment creditor to bring an independent action on the judgment." Tri-State Tank Corp. v. Higganum Heating, Inc., 45 Conn. App. 798, 802, 699 A.2d 201 (1997). "Under 52-607 a foreign judgment creditor who could or did not rely upon 52-605 can still proceed by an independent action on the foreign judgment, since this remedy remains unimpaired under the statutory scheme. This independent action on the foreign judgment allows the debtor to attack collaterally the foreign judgment by establishing facts that would render the foreign judgment void." Seaboard Surety Co. v. Waterbury, 38 Conn. Sup. 468, 471-72, 451 A.2d 291 (1982). "To be successful [in attacking collaterally the foreign judgment the debtor must show that the] judgment is void, not merely voidable . . . Broadly stated, this would require proof of the lack of a legally organized court or tribunal; lack of jurisdiction over the subject matter, the parties, or both; or want of power to grant the relief contained in the judgment." (Citations omitted; internal quotation marks omitted.) Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 653, 707 A.2d 314 (1998).
Based on the evidence submitted by the union, the union has established that an agreement existed between Davis Tree and the union and that Davis Tree had an obligation to pay into the union's pension and annuity fund on behalf of its employees. The union has also established that Davis Tree failed to fulfill this obligation resulting in the settlement agreement between Davis and Davis Tree and the union and the subsequent corporate and individual confessions of judgment by Davis Tree and Davis. Finally, the union established via Smit's affidavit and the copies of the New York judgments, that Davis and Davis Tree failed to make further payments, that the union filed the confessions of judgment in the Supreme Court for the state of New York for Orange County, and Davis and Davis Tree remain obligated to the union under the resulting judgments. The defendants do not contest whether they were provided actual notice of their default.
Davis and Davis Tree may attack the judgments collaterally as void by submitting proof that they were issued by a court that was not legally organized; that the court lacked jurisdiction over the subject matter, the parties, or both; or that the court lacked the power to grant the relief contained in the judgment. The defendants have not, however, provided any counter-affidavits or other evidence attacking the judgments and, therefore, the plaintiff's motion for summary judgment must be granted.
For the foregoing reasons, the union's motion for summary judgment in lieu of a complaint is granted, and judgment is entered in favor of the plaintiff against the defendants in the amount of $35,703.20, plus postjudgment interest, plus fees and costs.
BY THE COURT (WHITE, JUDGE.)